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TMI Blog1956 (4) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... hapati Bazar Madhopur in Madhopur Municipality within the district of Santal parganas. Thereupon on 28-7-1953, an application for stay of the execution proceeding was made in this Court on behalf of the judgment debtors. The learned. Registrar on hearing the parties made the following final order on 5-10-1953: Heard learned Advocate: The order of ad interim stay is made absolute on appellant's furnishing security to the satisfaction of the Court below within three months from the date of this order, failing which this order of stay shall stand automatically vacated and the petition rejected . It is not denied that the appellants in compliance with this order furnished security to the satisfaction of the Court below. Therefore in view of the order passed on 5-10-1953, the execution proceeding had to remain stayed. Unfortunately thereafter on 22-11-1954, First Appeal No. 128 of 1953 stood dismissed for non-compliance of a peremptory order for the payment of ₹ 124/1/- as printing cost. This, therefore, led to an application for restoration of the appeal by the appellants and this Court on hearing the parties restored the same by its order dated 11-5-1955. That order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the prayer made in the application dated 4-8-1955, filed by the petitioner in First. Appeal No. 128 of 1953 was not for the stay of delivery of possession but for the stay of sale. The mistake perhaps arose due to certain confusion made in the course of the hearing of the application. The result was that when this order was brought to the notice of the executing Court on 12-8-1955, it referred the matter back to the High Court for further clarification by its order of that date which read as follows: Copy of order No. 24/D. 11-8-1955 in P. A. No. 128 of 1953 of the Hon'ble High Court, Patna, allowing ad interim stay in this execution case (M, Ex. No. 24/53) so far as delivery of possession is concerned received. In this execution case no question of delivery of possession arises inasmuch as this is an execution of money decree for realisation of decretal amount only. Write to the Hon'ble H. C. accordingly . 4. This order unfortunately could not be placed before the learned Registrar before 16-8-1955, till when the sale under the order dated 2-8-1955, passed by the executing Court was to remain on hammer. Therefore, on 16-8-1955, an application was again. filed on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he sale held on 16-8-1955, should be considered as void and as such should be annulled. The Court on a consideration of the entire matter and on hearing the parties passed the following order on 1-9-1955: Copy of the Hon'ble High Court's order No. 25 dated 18-8-1955 in P. A. No. 128/53 issuing order of ad interim stay of sale put up. The sale has already been knocked down on 16-8-1955 poundage fee filed by the D. Hr. (A. P.). Inform the Hon'ble Court. Order accordingly. Pending further order the sale will not be confirmed as already ordered on 16-8-1955 . The judgment-debtors being dissatisfied with the aforesaid order have now come in appeal to this Court. 5. In my opinion, the appeal should be allowed. In other words, I think that the learned advocate for the judgment debtors is right in his submission that the stay order passed in First Appeal No. 128 of 1953 on 5-10-1953, by the learned Registrar revived on 11-5-1955, on the restoration of the first appeal after its dismissal for default in the meantime, and also that the order of stay passed by the learned Registrar on 11-8-1955, in fact the dismissal of the first appeal on 22-11-1953, fell related to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. This, as it appears from it, clearly lays down that the attachment before judgment is to lose all its force once the suit is dismissed. This rule of law cannot apply to a case where a suit on dismissal for default is itself revived, and, therefore, the learned advocate appearing for the respondent could not place any authority contrary to this view and those which he relied upon related to cases which fell in line with those in AIR 1930 Mad 514 (PB) (F) 10 All 506 (H). 7. Nest it was contended on behalf of the respondent that the order of stay is not an order which may be called an ancillary order. In my opinion, this on the face of it, is unsustainable. It is well obvious from the entire scheme of law laid down in the Code of Civil Procedure that interlocutory orders like one for stay are nothing but ancillary orders and they are all meant to aid and supplement the ultimate decision arrived at in the main suit or appeal. Therefore, I hold that once a suit or appeal dismissed for default is restored by the order of the Court, all ancillary orders passed in the suit or appeal before its dismissal also revive and operate since that date with all their legal implications unl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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