The main legal point established in the judgment is that an order of stay is a prohibitory order, which needs to be communicated to the lower court to be effective, and any action taken by the court before the order is communicated is not a nullity.

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 the High 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 Bessesswari 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 sal

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