Vemuri Subbayya vs Bayya Nagaratnamma and Others

Somayya, J.—The question in this case is, in my opinion, really concluded by the decision of the Full Bench in Venkatachalapati Rao v.

Kameswaramma (1945) 1 M.L.J. 165. An order for stay was obtained from the Appellate Court on the 9th July, 1942, but it was not

communicated by the Appellate Court to the trial Court until the latter Court rose for the day. It seems to have been received in the office of the

District Munsif after court hours. A warrant had been issued for the attachment of certain movables of the judgment-debtor on the same day, and

the finding of the lower Court is that it was done long before the trial Court had notice of the stay order. The order for attachment was issued even

prior to the passing of the order of stay by the Appellate Court. The warrant was issued to an amin, and the amin attached certain movables early

on the morning of the next day. The question is whether the attachment is valid.

Mr. K. Kameswara Rao, learned advocate for the appellant, argues that the amin and the decreeholder''s son were personally aware of the

order of stay passed by the District Court on the previous day. This is found against by the lower Appellate Court. Then, it is said that at the time

when the attachment was made, the judgment-debtor informed the amin that a stay order had been passed by the District Court on the previous

day. This appears to be so, but the question is whether the attachment effected without the warrant having been recalled and while it was in force is

valid. Here it cannot be said that the order was communicated by the superior authority, the District Court, even to the District Munsif''s Court until

the Munsif''s Court sat the next day at 11 o''clock. The mere fact that the order reached the office late in the evening of the 9th does not mean that

it reached the District Munsif at any time before the office business commenced on the 10th morning. By the warrant which had been issued the

previous day the amin was directed to attach certain movables. He would be guilty of gross dereliction of duty if he did not do his duty, and he

could refrain from effecting the attachment only if the warrant was withdrawn.

Mr. Kameswara Rao urges that it is not necessary that the order of the superior Court should be officially communicated to the lower Court,

and that it is enough if the trial Court is informed by any one of the fact that the superior Court has ordered the stay. This question is concluded by

the decision in Venkatachalapati ordered the stay. This question is concluded by the decision in Kasaribada Venkatachelapati Rao Vs. Maddipatla

Kameswaramma alias Kamakshamma, . There the attachment was effected after the stay order was passed by the Appellate Court and before it

was communicated to the trial Court. An alienation was made after the attachment was effected; and the question was whether the alienation

prevailed over the claims enforceable under the attachment. If the attachment had not been validly effected, then the alienation would have

prevailed. The question was answered by the Full Bench holding that the attachment was valid and they dissented from the view taken by the

Court in an earlier decision in Ramanatha v. Arunachala (1913) 26 M.LJ. 275 : 38 Mad. 766. In the earlier case it was held that the moment the

appellate Court passed the order of stay, the trial Court became functus officio. That decision has been definitely overruled by the Full Bench in the

latter case. Further, Ayling, J., who delivered the leading judgment of the Full Bench says this at page 154,

I regard an order of an Appellate Court staying execution as in the nature of a prohibitory order to the lower Court which'' becomes effective only

on communication. Till it is communicated, steps in execution taken by the lower Court must be treated as legally valid.

Seshagiri Aiyar, J., said this,

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 that has been done. This principle of jurisprudence should not be departed from unless there is any legislative provision to

the contrary.

The expression ""till it is communicated"" used by Ayling, J., really means communicated by the superior authority, who passed the stay order.

Any doubt on this question is cleared by what Seshagiri Aiyer, J., said that the Court exercising jurisdiction cannot be regarded as having been

deprived of it unless the superior authority informs it that that has been done. Thus it is the communication from the superior authority that will

deprive the trial Court of its jurisdiction to proceed with the execution. In this case, the superior authority did not communicate to the trial Court

until the business of the trial Court began on the 10th July. Therefore the view taken by the lower Court that the authority of the trial Court to

execute the decree was not ousted is correct.

Then it is argued that the amin was told about the order before he really effected the attachment and that it is not necessary to communicate the

order to the ministerial officer and that it is enough if it is communicated to the Court. This argument is pressed in the view that communication had

been made officially to the District Munsif on the 9th, though late in the evening. I have already held that this is not enough, and it is only when the

Court, i.e., the presiding officer, would know about it, which could only be on the next day, that the order could be said to have been

communicated by the authority to the subordinate authority. Even if this view is wrong, it only comes to this that the order had reached the District

Munsif''s Court but the order was not communicated to the sale officer. Is the amin who was entrusted with the duty of effecting the attachment

bound to have staved his hands on communication by the judgment-debtor is the question. Mr. Kameswara Rao urges that the amin must stay his

hands the moment he is told by some one that the stay had been granted by the Appellate Court. This argument, if accepted, will lead to very

inconvenient and startling results. A judgment-debtor may be found after great difficulty in arresting him and the moment he is caught, if on his mere

statement that the order has been stayed, the amin is bound to let him go, it will involve the decree-holder in fresh proceedings to arrest him, and

the judgment-debtor may not be found ultimately if let go on the first occasion when he was caught.

The true principle is, in my opinion, laid down in Parsotham Saran v. Bahrma Nand (1927) I-L-R. All. 41. The authority of the agent or of the

officer is not taken away until the Court which granted the authority terminates it and informs the agent or officer that it has been terminated. At

paa:e 47, Mukerji, J., savs this,

What principle, then, is there on which we are bound to hold that what was done in perfect good faith and in possession of clear jurisdiction

becomes null and void solely because unknown to the Court below, an order had been passed? Taking analogy from general life; if A directs his

agent B to purchase a ton of what from C and then countermands! his order and if B, before he receives the subsequent order of A, makes the

purchase from C, can it be contended with any show of reason that the purchase by B is not binding on A?..It is undoubtedly true that the sale

officer derives his authority to sell, from the Court. But so do all agents from the principal. But who has ever heard that the principal is not bound

by the agent''s act, if the agent is unaware of the fact thatt his authority has been revoked. A sale officer acts on behalf of the Court and is to the

extent of his duties clearly defined, the Court''s agent. The Court is bound to confirm a sale except under circumstances well defined. It has no

arbitrary power to set aside a sale under all circumstances. If, then, it is urged that the mere fact that a stay order (un-commiyiicated) was made,

made the sale illegal, some better reason must be found that the officer became functus officio, without his knowing this.

I respectfully follow the view propounded by Mukerji, J., in this case and hold that the attachment was properly made.

The other question raised is that there was a shortage when the property was re-rMivered after the Court ordered re-delivery. It has been found

as a question of fact by the lower Appellate Court that there is no proof of the actual quantity attached and it has held that what was attached was

re-delivered. This is a finding of fact and no reason is shown for interference in second appeal.

Both the civil miscellaneous second appeals are dismissed with costs in C.M. S.A. No. 132 of 1944. No leave.