Find a Lawyer

Civil Rule No. 63 (S. M.) of 1949 and Civil Order No. 159 of 1950, decided on 31st May, 1950.

O. XLI, r. 5‑Effect of stay order‑Proceedings subsequent to communication to Court become void.

Though there is some divergence of legal opinion on the question as to whether stay order will take effect from the date when it was issued or from the date on which it was com municated to the Executing Court, there appears to be a certain amount of consensus of legal opinion on this that the effect of the order of stay is that all subsequent proceedings at least after the date of the communication of the order become void.

Muhammad Nurul Huq Chaudhury, for Petitioners.

Obaidul Haq for A. S. M. Mofakher, for Opposite party.

This rule was issued on the 25th January, 1949, at the instance of the judgment‑debtor who had filed an appeal, namely, Second Miscellaneous Appeal Tender No. 843 of 1948 against an order of the Munsif, 1st Court, Sadar, made in mortgage execution case No. 62 of 1948. While issuing this rule, this Court made an ad interim order staying further proceedings in the said execution case. The ad interim stay order was issued from this Court's office on the 29th January, 1949, and, it was received in the Munsif's Court on the 2nd February, 1949, but it appears that the clerk of the Munsif under a mistake kept this order in the file, with the result that no action could be taken on it. Consequently the next date of the execution case which was the 26th February, 1949, came and the decree‑bolder was found to be absent. The execution case was dismissed for default on the 28th February. The decree holder then made an attempt to have this case restored but his application was rejected. All these facts have been elicited from the record of the case and from the report which this Court called for from the lower Court in connection with this matter when it was reported to this Court by the judgment debtor that no action for staying of proceedings on the order of this Court had been taken by the Court below.

Though there is some divergence of legal opinion on the question as to whether stay order will take effect from the date when it was issued or from the date on which it was com municated to the Executing Court, there appears to be a certain amount of concensus of legal opinion on this that the effect of the order of stay is that all subsequent proceedings at least after the date of the communication of the order become void. We, therefore, hold that all the orders by the Executing Court in mortgage execution case No. 62 of 1948 after the second of February, 1949, on which the stay order was admittedly received by that Court are void and of no effect. The two orders made in that execution case, namely, orders, dated the 28th February, 1949, and 7th March, 1949, are hereby set aside.

The result is, that the execution case No. 62 of 1948 will be deemed to be pending and further proceedings in that execu tion case are hereby stayed pending the hearing of the connected Second Miscellaneous Appeal in this Court.

The rule is made absolute.

Under the circumstances of the case, we make no order as to costs.

K.M.A Rule made absolute.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.