P. Govinda Menon, J.

1. 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 of the suit ex parte allowing the defendant's contention. As the suit was disposed of O.P. 12/57 for transfer of the suit was not pressed. The petitioner filed another petition O.P. 20/57 under S.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 & 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 forthwith operates 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.

3. The earliest reported decision on this point is in Bessesswari Chowdhurani v. Horro Sundar Mozumdar and others (1 Calcutta Weekly Notes 226). That was a case where there was an an exparte 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 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. An order under S.545 (the present R.5 of 0.41 C.P.C.) does not cancel the order for sale, nor does it purport to undo anything 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".

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

4. A contrary view was taken by the same court in Hukum Chand Boid 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. Thereupon a further rule was obtained from the High Court calling upon the de