Govinda Menon, J.:— The plaintiff-petitioner had filed a suit on a promissory note, case No. 20/56 on the file of the Kavukkode Panchayat Court against the respondent. The respondent filed written statement denying the plaint claim. Pending disposal of the case, the petitioner filed an original petition in the Munsiff's Court, Ponnani as O.P 12/57 for the transfer of the case. We are not concerned, in this petition, with the merits of the allegations made therein. The Munsiff on 1-4-57 passed orders granting interim stay of the proceedings in the lower court and hearing of the petition was fixed to 20-5-57. The stay order was despatched by post to the President, Kavukkode Panchayat Court, on the same day itself, as is seen from the register in the Munsiff's Court. Notice was however not received by the President and therefore fresh notice was ordered and the petition was posted to 26-6-57. Before that date on 8-6-57 the Panchayat Court took up the case for hearing and disposed off the suit ex parte allowing the defendant's contention. As the suit was disposed off, O.P 12/57 for transfer of the suit was not pressed. The petitioner filed another petition O.P 20/57 under Section 73 of the Village Courts Act to revise the decree. The lower court found that the Panchayat Court was not appraised of the passing of the stay order and therefore could not be blamed for having passed the decree and dismissed the Petition. This revision petition has been filed against the above said order.

2. The question for consideration in this petition is whether the passing of an order of stay by a superior court operates forthwith to suspend the jurisdiction of the lower court or whether it operates only when the order of stay is communicated to the lower court. As there are conflicting rulings of the different High Courts, and as the point involved is one of general importance, our learned brother, Raman Nayar, J., referred this case to a Division Bench and that is how it has come up before us. The earliest reported decision on this point is in Bessesswari Chow Dhurany v. Horro Sundar Mogumdar (I Calcutta Weekly Notes 226). That was a case where there was an ex parte order of stay made by the appellate court to stay the sale pending disposal of the appeal from the decree, for the satisfaction of which the property was sold, but the sale took place before the order reached the court which ordered the sale. The question was whether the order to stay the sale even though not communicated made the sale, which afterwards took place, a nullity. Their Lordships held that an order to stay execution of a decree from which an appeal is pending is only in the nature of a prohibitory order and as such would only take effect when communicated. Their Lordships observed:

“The order in this case was to postpone the sale until further orders were issued, but the sale took place before the order reached its destination. The Appellate Court has nothing to ??? 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. An order under Section 545 (the present Rule 5 of Order 41 C.P.C) does not cancel the order for sale, nor does it purport to undo any thing which has been done; its utmost effect is to stop further action in the direction of execution but it would only have that effect when it reached the court or person whose duty it was to obey it”.

3. Under the circumstances the court held that it cannot be said that the sals was void in law and refused to set aside the sale.

4. A contrary view was taken by the same court in Hukum Chand Bold v. Kamalanand Singh (I.L.R 33 Cal. 927). In that case, an “ad interim” order for stay of delivery of possession had been obtained from the High Court, but before the order was communicated to the court below, the court below had delivered possession to the decree-holders. There upon a further rule was obtained from the High Court calling upon the decree-holders to show cause why the decree-holders should not furnish security. The question that was debated was whether the court was competent to require security from the decree-holders and the court held that security could be taken. In the course of that judgment their Lordships Woodroffe and Mookerjee, JJ., had occasion incidentally to discuss the effect of an uncommunicated interim order for stay of delivery of possession. The observation of Woodroffe, J., is to be found at page 934 which is as follows:

“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; exparte Hockey (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 consideration here arises. 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”.

5. Mukerjee, J., made a similar observation:

“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 proceeding, till be 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.”

6. The learned Judge quotes the observation of Baldwin, J. of the Supreme Court of California in Buffandeau v. Edmondson ((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 justification for the execution after he order for stay than there would be for execution after the proceedings have been quashed. To doubt could exist that the order would be effectual without any previous notice to the authority carrying on the execution, because the order for stay has direct effect upon the process self, although if proceedings are taken to punish the person, who has carried on execution after had been stayed, it is necessary to show that he a had notice of the order, because, it is only after ??? notice that his act would be in defiance of law and in contempt of the court.”

7. The learned Judge therefore held:

“that the delivery of possession made by the court below, after this court had made an unconditional order for stay of execution, was done in excess of its powers and cannot prevent is court from directing the respondents to furnish security, as it would undoubtedly have power do, if execution had not been completed.”

8. A similar question whether an order passed by the appellate court paying execution by the lower court, operates from the time of its passing or from the time of its communication to the lower court came up again in Jatis Chandra Pal Chawdhury v. Kishoroda Kumar Pramanior, Manager to Estate of Hari Bangsha Pal Chowdhury (A.I.R 1943 Cal. 319). There it was held that,

“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. 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 be a nullity.”

9. In Sm. Tarulate Devi v. Bibhuti Bhushan Roy (A.I.R 1953 Cal. 467) the conflicting views in I Calcutta Weekly Notes 226 and I.L.R 33 Calcutta 927 were again considered and their Lordships held that,

“The making of an ‘ad interim’ order for stay does not take away the jurisdiction of the court below, but the effect of the order is, nevertheless, that an order of such court in contravention of the order for stay is irregular or at the most illegal but not ultra vires.”

10. We are told that there is a later decision of the same court which again has gone back to the view taken in I.L.R 33 Cal. 927.

11. A Full Bench of the Madras High Court in Kasaribada Venkatachalapati Rao v. Maddipatle Kameswaramma alias Kamakshamma (I.L.R 41 Madras 151) had occasion to consider the effect of the conflicting rulings. In that case, the appellate-decree-holder obtained an order of attachment of certain properties of the judgment-debtor and attachment was actually carried out. The judgment-debtor who had filed an appeal against the decree made an application for stay of execution and obtained an interim order staying the execution till the disposal of the appeal. Later, this order was vacated as the judgment-debtor failed to furnish security. After the order for interim stay was passed and before that order was set aside, the judgment-debtor sold the property to a third person. The question for decision was 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, would the order of attachment be void and ineffectual as having been made without jurisdiction. Reference was made to the conflicting rulings in Muthukumaraswami Rowther Minda Navinar v. Kuppusami Aiyangar (I.L.R 33 Mad. 74) following I Calcutta Weekly Notes 226 and the later decision in Ramanathan Chetty v. Arunachallam Chetty (I.L.R 38 Mad. 766) which follows the decision in I.L.R 33 Cal. 927. Seshagiri Ayyar expressed his disagreement with the view expressed in I.L.R 33 Calcutta 927 and I.L.R 33 Madras 74 and observed:

“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 in 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 has been done. This principle of juries prudence should not be departed from unless there is any legislative provision to the contrary.”

12. Ayling, J., considered the order of the appellate court staying execution as in the nature of a prohibitory order to the lower court which becomes effective only on communication and held that till it is communicated steps in execution taken by the lower court must be treated as legally valid.

13. The Madras view was followed by the Full Bench of the Allahabad High Court in L. Pursotam Saran v. B. Barhma Nand (A.I.R 1927 All. 401). The earlier cases supporting either of the views were discussed and they held 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”.

14. They however made a distinction between the cases where the decree-holder had made the purchase and where the purchaser is a third party acting in good faith. The decree-holder, they said, cannot shake off his character, as such merely by reason of his auction purchase and he is bound by all orders passed in the case. A stay order therefore would operate against him and it may be that a purchase by a decree-holder will be set aside on the mere ground of the passing of the stay order. They also dissented from the view taken in the earlier case in Nand Kishore v. Shadi Ram (A.I.R 1926 All. 457).

15. The Travancore High Court in the Full Bench case in Thommi Thomma v. Mathai Ouseph (40 T.L.R 237) dissented from an earlier view of the same High Court in 24 T.L.R 86 stating that the law laid down therein was rather in broad terms and that the correct view appears to be:

“Where an unconditional interim order is made by the High Court or an appellate court so as to affect the further progress of proceedings pending before a subordinate court and where either notice of such order is given to the latter court by an official communication or the said court is otherwise credibly informed of such order, the said order takes effect from the moment of the receipt of such communication or information and all subsequent further proceedings inconsistent with such order are void. The mere fact that an order of the nature above indicated is made by a superior Tribunal does not affect the jurisdiction of the subordinate court in respect of acts done, orders made, or directions given, without knowledge of the said order”.

16. This view was reiterated in Martin P. D'cruz v. K.S Rangaswamy Aiyangar (55 T.L.R 205). They said to settle the question of “credible information” as envisaged in 40 T.L.R 237 case ultimately, the Judge himself may have to be examined and therefore they held the stay order would take effect only after it has been officially communicated and until that is done, the subordinate court is at perfect liberty to proceed with the execution or trial in the usual course and that the jurisdiction of the court below statutorily conferred on it in express terms cannot be regarded as being taken away.

17. The learned counsel for the petitioner has brought to our notice the Full Bench decision in Karam Ali v. Raja (A.I.R 1949 Lahore 108). The learned Judges drew a distinction between a stay order and an injunction or prohibitory order. A prohibitory order or injunction, they stated, 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. An order under Order 41 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. They hold that:

“A stay order under O. 41, R. 5, made by the High Court, staying the execution of a decree or order under appeal, operates from the time that such order is made and not from the time it is communicated to the executing court”.

18. More or less to the same effect are the decisions in A.I.R 1951 Patna 130; 1959 Punjab 468; 1933 Rangoon 416 and 1942 Oudh 46. All these decisions follow the reasoning in I.L.R 33 Cal. 927.

19. On the reasoning particularly of the Lahore case referred to above and I.L.R 33 Cal. 927, the learned counsel for the petitioner strenuously contends 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. Order 41 Rule 5 clearly lays down that the mere filing of an appeal shall not operate as a stay of proceedings and the appellate court may order stay of execution. Now, when an appellate court orders stay of execution it gives a direction to somebody. The execution is not in the hands of the appellate court. It is 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 the execution and the execution must proceed. Similarly, in the case of a stay order passed in a case of a transfer petition, the court orders that the lower court should not proceed further with the trial of the suit. If the lower court has no information of that direction nothing prevents that court, which has got the full jurisdiction to try the case to dispose off the suit, and pass the decree. It is difficult to conceive how an order which the court of first instance was bound by law to pass could be said to be made without authority. The grounds of convenience seem also to preponderate against the opposite view. We have carefully considered the reasoning in all the decisions placed before us and we are in respectful agreement with the view taken in I Calcutta Weekly Notes 226 and followed in I.L.R 41 Madras 151 and we are of opinion that the mere fact that an order of stay has been passed by an appellate court does not affect the jurisdiction of the subordinate court and the order takes affect only after it is officially communicated to the subordinate court. We find ourselves unable to subscribe to the view that the stay order operates from the time such order is made and all subsequent proceedings in the subordinate court are a nullity.

20. In the instant case there was no communication of the stay of proceedings by the Munsiff court to the Panchayat Court until after that court disposed off the suit. The petitioner also did not care to produce a certified copy of the order of stay or to file at least an affidavit intimating the filing of the transfer petition and the fact that an interim order of stay had been passed by the Munsiffs Court. Consequently the statutory jurisdiction vested in the Panchayat Court to try the suit remains until the decree has been passed. The decree passed is therefore a valid decree which it had jurisdiction to pass and we do not find any reason to set aside the decree in this revision petition. The case may probably be a hard one as represented by the petitioner. It is strange that the stay order sent by post is said to have been not received by the President. But there is nothing in this case to fix the Panchayat Court with knowledge of the stay order. Possibly if the petitioner had taken timely measures to file an affidavit in the court, the Panchayat Court would not have taken up the suit for hearing. The petitioner has only himself to blame for what happened and we cannot now grant him any relief. We dismiss the Civil Revision Petition, but we do so without any costs.

21. We are grateful to Mr. Rama Shenoi who has acted as Amicus Curiae and to Mr. T. Chandrasekhara Menon, advocate for the petitioner for their able and lucid exposition of the law on the subject and for their valuable assistance.