JUDGMENT

Bennett and Madeley, JJ. - This is an appeal against an order u/s 47 Code of Civil Procedure

2. The facts of the case are that Babu Narendra Bahadur Singh, the husband of the decree-holder was the owner of the immoveable in question as Taluqdar of Hanswar estate. On his death on the 4th February, 1936, there were three claimants to his estate which included much other property besides the property now in dispute. The decree holder claimed the entire property as his widow. The Defendant judgment-debtor, who is the nephew of the deceased, claimed to be his sole heir under the Oudh Estates Act. Deceased brother claimed the property on the ground that he and the deceased were members of an undivided Hindu family. He also set up a custom. All the three claimants made separate applications for mutation. During the pendency of these proceedings the decree-holder and the judgment-debtor entered into a family settlement by way of compromise. The decree-holder admitted that the judgment debtor was the sole owner of the estate and the judgment-debtor agreed to pay to the decree-holder Rs. 12,000 per annum during her life-time. She was not to receive this in cash, but the judgment-debtor promised to put her into possession of the property in question in these proceedings as yielding profits amounting to Rs. 12,000 per annum. The decree-holder thereupon applied for mutation but this was opposed by the judgment-debtor and the application was dismissed. Thereupon she filed a civil suit for possession. The suit was contested by the judgment-debtor. On the 5th November, 1941, she obtained a decree for possession. On this date the judgment-debtor made an application for stay of execution. This was ordered to be put up on the 6th, and on that date it was ordered that the question of stay should not be decided until an application for execution was made. On the 10th November, 1941, the decree holder made an application for execution, and on the same date the application of the judgment debtor for stay was dismissed on the merits under Order 41, Rule 5(2), CPC On the 11th November, 1941, the judgment-debtor made an application that he had filed an appeal in the Chief Court on the 10th November, 1941, with an application for stay, but as the memorandum of appeal was not accompanied by a copy of the decree, (the copy not yet being ready) he had been ordered to file a copy of the decree before any action was taken on the application for stay. This application was allowed and the judgment-debtor was given time till the 18th November, 1941, to secure the order of stay, and as the decree holder stated that the warrants for "dakhaldehani" had already been taken by the Nazir for execution, it was ordered that the warrants, if they had not already been executed, or such of them as had not already been executed, should not be executed until further orders of the Court. On the 14th November, 1941, the Nazir returned all the warrants after execution with reports on them that they had been executed.

3. On the 18th November, 1941, the Counsel for the judgment debtor brought an order dated the 17th November, 1941, from the Chief Court staying proceedings pending further orders. On the same date another subsequent order dated the 17th November, 1941, was brought from the Chief Court to the effect that if possession had already been given, the stay order already issued would naturally be inoperative and it would merely stay future proceedings. On the 18th November, 1944, Counsel for the judgment-debtor made an application u/s 47/151, Code of Civil Procedure, that the "dakhaldehani", if any, was illegal and ineffectual and it should therefore be proclaimed on the spot that the "dakhaldehani" is void, as proceedings had been stayed by the Chief Court. Then on the 21st November, 1941, the order of the Chief Court dated the 20th November, 1941, reached the Additional Civil Judge calling for a report on the facts of the "dakhldihani". Evidence was taken, and in t