A stay order passed by an appellate court operates from the moment it is passed and deprives the executing court of jurisdiction to execute the decree.

ReuBen, J.

1. The case has been refd. to a Special Bench for a decision as to when an order under O. 41, E. 5, Civil P. 0. passed by an appellate Ct. becomes operative, whether it operates from the moment when it is passed or only after communication to the Subordinate Ct.

2. This appeal, which is directed against a decree for the recovery of possession of certain property, was filed on 13-4 1950. On the 14th of April by an order under 0. 41, B. 5, an order for ad interim stay of delivery of possession was passed. The necessary requisites were filed on the 17th of April & the order was issued for communication to the subordinate Ct. By some mischance the appllt. made an error in naming the subordinate Ct. & the communication was addressed to the Permanent Munsif of Araria instead of the Addl. Munsif of Araria. It reached the Permanent Munsif on the 25th of April & was given effect to in execution case No. 8 of 1949 of his Ct. instead of being given effect to in the execution case of the same number in the Ct. of the Addl. Munsif in which the decree under appeal was being executed. In consequence, the Addl. Munsif delivered possession of the property in suit to the D. H. in June 1950.

3. The question at issue has come under the consideration of the Cts. in several reported decisions. The earliest of these is Bessesswari v. Horro Sundar, 1 c. W. N. 226, in which property was sold in execution of a decree & purchased by a third party subsequent to a stay order u/s- 545, Civil P. C. of 1882. Their Lordships held that the stay order was in the nature of a prohibition to the executing Ct. & would, therefore, take effect only when communicated. The executing Ct. therefore, had jurisdiction to sell the property & the sale was a valid one. Exactly the opposite- view was taken by Woodroffe & Mookerjee JJ. in Hukum Chand V/s. Kamalanand, 33 cal. 927: (3 C. L. J. 67), in which the decree, as here, was for recovery of possession. While distinguishing the case of Bessesswari, (1 c. w. N. 226), on that ground that the question arose between the J. D. & a third party purchaser, their Lordships went on expressly to dissent from the decision in that case. They agreed that a prohibitory order, for instance an injunction, will operate as a prohibition only from the moment of communication but took the view that an order of stay is not such an order &, from the moment when it is made, suspends the power of the subordinate Ct. to carry on further execution proceedings. In Muthukumarasami V/s. Kuppusami, 33 Mad. 74: (3 I. c. S2), a case of an execution sale, their Lordships folld. the case of Bessesswari, (1.C.W.N. 226), in preference to that of Hukum Chand Kamalanand, (33 cal. 927 : 3 C. L. J. 67), but without any discussion. In Bamanathan V. Arunachellam, 38 Mad. 766 : (A. I. E. (1) 1914 Mad. 26l), another case of execution sale, Sadasiva. Ayyar J. expressly differed from the decision in Muthukumarsami Bowthers case, (33 Mad. 74 :. 3 I. C. 82), and expressed the view that unless otherwise provided in the order itself the order operates immediately& suspends from that moment the jurisdiction of the Subordinate Ct. to proceed with the execution of the decree under appeal. The facts of the case were that a telegram was sent to the Vakil at Madura informing him of the order of stay & the Subordinate Ct. of Ramnad was moved by a petn. accompanied by an affidavit to stay the sale but it refused to act on the telegram in the absence of an official communication,. Spencer J. made this a ground for distinguishing the case of Muthukumarsami Bowther, (33 Mad. 74 : 3 I. c 82). In his opinion, the Subordinate. Ct. acted injudiciously in not postponing the sale in order to ascertain the truth of the information received & he treated this as a reason for setting aside the sale. At the same time he observed that there was much force in the observation of Woodroffe J. in Hukum Chand V/s. Kamalanand, (33 cal. 927 : 3 c. L. J. 67) :

"That there is no reason