Judgment :- 1. The additional petitioner in D. R. O. P. No. 2 of 1966 in the Sub Court, Ernakulam, is the revision petitioner. That proceeding was one under S.11 (2) and (3) of Act 31 of 1958 for the redemption of a mortgage on deposit of half the mortgage amount. The original mortgagor, who was the petitioner to start with in the D. R. O. P. deposited the mortgage amount and the additional petitioner (the revision petitioner before me) claims to be a co-mortgagor, having derived a fractional interest in the equity of redemption from one of the co-heirs of the late Mahammad who was the mortgagor. After having obtained an order for redemption and deposited the amount prescribed under S.11, the petitioner took possession in execution of the decree passed by the Sub-Court. In between, certain things happened which constitute the subject matter of the present controversy. The 1st respondent before me contended in the Sub Court that he was a varamdar (along with the 2nd respondent) under the mortgagor and that his possession could not therefore be displaced in execution of the redemption decree. The lower court decided against him on 22 111968 and eventually disposed of the entire D. R. O. P. on 18121968. Thereupon, the 1st respondent (the alleged varamdar) filed a revision petition in this Court challenging the order holding against his varamdar status. In that revision petition (C. R. P No. 40 of 1969), he obtained an ex parte stay order on 911969.On the same day he apprised the executing Court (the local Sub Court) of the factum of stay by the High Court. Meanwhile, the extra-diligent revision petitioner had taken out execution and the creditably I don't say suspiciously prompt delivery effected by the Amin of the Court was a little earlier to the communication of the order of the Sub Court recalling the warrant. For, when the Sub Court came to know that a stay had been ordered by the High Court, immediately an order was passed recalling the warrant, but by the time the Amin came to know about it he had already delivered possession of the property to the revision petitioner (and the 2nd respondent before me) and he reported that fact to the Court. Thereupon, the 1st respondent who, notwithstanding the stay order by this Court, was deprived of his possession in execution, moved the Sub Court for putting him back in possession in effectuation of the stay order and by undoing what had been wrongly done. The learned Subordinate Judge thereupon passed an order in the following terms: "In the circumstances of the case re-delivery is allowed without further delay as requested for by the petitioner. Delivery on 2011969." Between the revision petitioner and the 2nd respondent, they have used the machinery of the appellate and the revisional Courts to stave off the effect of the order directing re-delivery. So much so, the 1st respondent is still out of possession. The direction to effect delivery on or before 2011969 is still remaining a dead letter. Anyway, it is this order for re-delivery passed in I. A. No. 151 of 1968 which has been challenged before me by the learned counsel Shri. Kalliath. 2. He raised before me three points and argued them with ability. His first contention was that the mere fact that the High Court had granted a stay of execution did not deprive the executing Court of its jurisdiction to carry on the execution. Therefore, delivery proceedings in this case culminating in the actual giving of possession to the revision petitioner was perfectly valid. In support of this contention counsel relied upon a ruling reported in 1960 KLT. 264 and another reported in AIR. 1967 SC. 1386. There is no doubt that the legal position has been conclusively and clearly stated by the Supreme Court to that effect. Wanchoo J., as he then was, speaking for the Court, observed: "An order of stay in an execution matter is, in our opinion, in the nature of a prohibitory order and is addressed to the Court that is carrying out execution. It is not of the same nature as an order allowing an appeal and quash ing execution proceedings. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the Court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the Court. That kind of order takes effect immediately it is passed, for such an order takes away the very jurisdiction of the Court executing the decree as there is nothing left to execute thereafter. But a mere order of stay of execution does not take away the jurisdiction of the Court. All that it does is to prohibit the Court from proceeding with the execution further, and the Court unless it knows of the order cannot be expected to carry it out. Therefore, till the order comes to the knowledge of the Court its jurisdiction to carry on execution is not affected by a stay order." Counsel placed stress upon another observation of the Supreme Court in a slightly different context, but I shall extract it even here. "It is clear that as soon as a stay order is withdrawn, the executing Court is entitled to carry on execution and there is no question of fresh conferment of jurisdiction by the fact that the stay order has been withdrawn." In short, an order of stay does not 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 reaches the Court or person whose duty it is to obey it. Counsel therefore contends that he has been validly put in possession and there is no decision for ordering re-delivery. 3. It must be remembered that admittedly the revision petitioner was put in possession only after the stay order was passed by the High Court, and indeed, after it was communicated to the Sub Court. Once it is communicated to the Sub Court it operates and delivery effected by its officer subsequent thereto is illegal, according to the respondent; while the petitioner suggests that if the Amin delivers in ignorance of the stay, it is still good. At any rate, if delivery of possession is effected after the order of stay has been passed but before it is communicated to the Court, there is jurisdiction for the executing Court to set aside what it had done, not because the order of delivery is without jurisdiction -indeed, it is with jurisdiction, as the Supreme Court has explained - but because to meet the ends of justice such a step is often necessary. This facet of the question is also dealt with by the Supreme Court in the aforesaid decision and it has been held that the Court is not helpless in setting right the mistake committed in ignorance of the order of stay. The true legal position has been explained authoritatively by the Supreme Court, in the aforesaid decision, as follows: "Though the court which is carrying on execution is not deprived of the jurisdiction the moment a stay order is passed, even though it has no knowledge of it, this does not mean that when the court gets knowledge of it, it is powerless to undo any possible injustice that might have been caused to the party in whose favour the stay order was passed during the period till the court has knowledge of the stay order. We are of opinion that S.151 of the Code of Civil Procedure would always be available to the court executing the decree, for in such a case, when the stay order is brought to its notice, it can always act under S.151, and set aside steps taken between the time the stay order was passed and the time it was brought to its notice, if that is necessary in the ends of justice and the party concerned asks it to do so. Though, therefore, the court executing the decree cannot in our opinion be deprived of its jurisdiction to carry on execution till it has knowledge of the stay order, the court has the power in our view to set aside the proceedings taken between the time when the stay order was passed and the time when it was brought to its notice, if it is asked to do so and it considers that it is necessary in the interests of justice that the interim proceedings should be set aside. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S.151 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside the interim proceedings within a reasonable time. But that can only be done by the court which has taken the interim proceedings in the interest of justice under S.151 of the Code of Civil Procedure provided the order is brought to its knowledge and a prayer is made to set aside the interim proceedings within a reasonable time. Otherwise the interim proceedings in our opinion are not a nullity and in the absence of such exercise of power by the court executing the decree under S.151, they remain good for all purposes." Thus, if the executing Court comes to the conclusion that it is necessary in the interests of justice to undo what had been done after the order of stay was passed but before it was communicated, it can do so. Considerations which will be relevant in such a situation are those that bear upon the interests of justice rather than the rights of parties, technically viewed. 4. In the present case, the actual delivery of possession was effected by the Amin of the Munsiff's Court after the communication of the stay order to the Subordinate Judge's Court. If such delivery of possession is something done by the Court after acquiring knowledge of the stay order the consequence will be that what has been so done would be null and void for, the Supreme Court has observed: "...where a stay order is passed, execution still stands and can go on unless the Court executing the decree has knowledge of the stay order. It is only when the executing Court has knowledge of the stay order that the Court must stay its hands and anything it does thereafter would be a nullity so long as the stay order is in force." The argument of counsel for the respondent is that delivery of possession by the Amin of the Munsiff's Court is really an act of the agent of the Court and that it must be deemed to be an act of the Court carried out after the communication of the stay order and therefore a nullity. Counsel for the petitioner contends that even assuming that the Amin is an officer of the Court, the order in execution directing delivery having been passed by the Court before being apprised of the stay order that order was valid and whatever was done by the officer of the Court, armed with that order, is also valid unless it be that the officer did so after knowing of the stay order. Learned counsel has relied upon a Full Bench decision reported in AIR. 1927 All. 401 in this connection. Mukherjee J., speaking for the Court, observed as follows: "A stay order passed by the High Court does not have the effect of nullifying a sale held before the stay order could be communicated either to the Court below or to the officer conducting the sale where the purchaser is not the decree holder." Now, when an appellate Court orders stay of execution it gives a direction to somebody. The execution is not in the hands of the appellate Court. It has to tell the Court of first instance that it has to stay its hands in the execution of its decree. It necessarily follows that if the lower court has no information of the order of the appellate Court it cannot stay execution and the execution must proceed. "What principle, then, there is on which we are bound to hold" observed Mukherjee J. in the same ruling "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 wheat from C and then countermands his order and if B, before he received 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? The Court does nothing beyond selling the judgment-debtor's property on behalf of the judgment-debtor. It only carries out what the judgment-debtor is morally bound to do " A little later, his Lordship observes: "There could be no possibility of charging such an officer with misbehaviour. The Court does nothing beyond selling the judgment-debtor's property on behalf of the judgment-debtor. It only carries out what the judgment-debtor is morally bound to do " A little later, his Lordship observes: "There could be no possibility of charging such an officer with misbehaviour. We must go further and say that the act of the officer or the lower Court is good and valid, for the simple reason that they never knew that they were directed to act in a different way." Another decision brought to my notice by petitioner's counsel in this connection is the one reported in 1960 KLT. 265. Govinda Menon J. referred to the ruling reported in 1 Calcutta Weekly Notes 226, which has also been adverted to by the Supreme Court in AIR. 1967 SC. case. The Calcutta decision contains the observation that an order under S.545 (the present R.5 of 0.41 CPC.) 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. Counsel placed stress on the expression "it would only have that effect when it reached the court or person whose duty it was to obey it" and argues that till the Amin (person) came to know of it his act could not be impeached as invalid. It is true that the Supreme Court has not had occasion expressly to consider this finer fact of the question. In a case where the communication of the stay order is made after the delivery order was passed but before the actual delivery was effected, prima facie, I am inclined to think that the act of delivery is really the act of the Court through its officer or agent and under these circumstances, whatever has been done subsequent to the communication of the stay order suffer from the infirmity already indicated. But the passage in the old Calcutta decision and the observations of Mukerjee J. in the Allahabad Full Bench decision suggest a different line of thought and in the nature of the order I propose to pass, I do not want to pronounce on this question finally. 5. But the passage in the old Calcutta decision and the observations of Mukerjee J. in the Allahabad Full Bench decision suggest a different line of thought and in the nature of the order I propose to pass, I do not want to pronounce on this question finally. 5. In the present case, although a stay order was obtained in the Civil Revision Petition from the High Court, eventually, the revision petition was returned and an appeal was filed by the respondent before the District Court and it is pending as A.S. No 55 of 1969. Counsel for the revision petitioner urges before me that since the revision petition itself has been returned, the stay order passed on the interlocutory motion has: also therefore come to an end, and there is no longer any stay in force. Therefore, there is no need to deprive him of his possession and order re-delivery. His contention is that he has already paid the mortgage money as prescribed by Act 31 of 1958 and the mortgagee has received the amount deposited. He has got into possession in execution of the decree and has raised a crop thereon. At present there is no stay of execution and therefore, even if there is a re-delivery, he will be entitled to get back possession through Court immediately. Under these circumstances, nothing is gained by a formal dispossession and then putting him back in possession. Counsel for the respondent counters this by stating that he has not moved for stay of execution in the appeal filed by him in the District Court when the revision petition was returned because he is now out of possession and once he is put back in possession by the implementation of the re-delivery order, he will move the Court for stay of delivery, if at all the revision petitioner seeks to execute the decree and secure possession. There is force in this part of the contention of the respondent. 6. However, the lower Court's order for re-delivery has to be set aside because it does not approach the question from the point of view indicated by the Supreme Court in AIR. 1967 SC. 1386. It is not as if every delivery effected after the passing but before the communication of the superior court's stay order should be set aside in a routine fashion. 1967 SC. 1386. It is not as if every delivery effected after the passing but before the communication of the superior court's stay order should be set aside in a routine fashion. Really, the question has to be viewed from the point of view of the interests of justice in the circumstances of each case. There may be factors, pro and con. In this case a formal dispossession of the revision petitioner and delivery of possession shortly thereafter back to him does not serve any purpose. There is also the circumstance that he has paid the mortgage money but is now being deprived of the fruits of the mortgage decree. He has got a case that he has raised cultivation, but this is disputed by the respondent. On the other hand, the Court will also have to look at the situation from the angle of the respondent who claims to be a varamdar and states that he is already aggrieved by having been dispossessed and such dispossession should not be prolonged. Whether he is a varamdar or not has been held against him once although it is pending in appeal. Under these circumstances, a summary investigation from the point of view of the justice of the situation will have to be made de novo but expeditiously by the executing Court. May be that one party or the other may be allowed to be in possession on terms till a final adjudication; may be some other arrangement may work justice. But these are matters which the executing Court will have to advert to and decide. I therefore set aside the order of the executing Court impugned before me but direct it to go into the question again in the light of the observations and directions given by me in this judgment. 7. Counsel for the respondent fairly agreed that he does not want to prolong the determination of the rights of the parties in the least and said that he was ready to argue the appeal in the District Court. Counsel for the revision petitioner also stated that he was ready to argue the appeal right now. Both parties will also be able to find their level and know their actual rights if the appeal is disposed of early. Counsel for the revision petitioner also stated that he was ready to argue the appeal right now. Both parties will also be able to find their level and know their actual rights if the appeal is disposed of early. It is only proper, therefore, with the consent of both the parties who have expressed their willingness to argue the appeal within the shortest possible time to direct the appellate Court i.e. the District Court, Ernakulam, to dispose of the appeal, AS. No. 55 of 1969, within two months from today. The executing Court will, without reference to the disposal of the appeal, dispose of the re-delivery matter expeditiously not later than one month from the receipt of the records. 8. The Civil Revision Petition is disposed of as above. There will be no order as to costs. Copy of the last portion of the judgment will be sent to the District court, Ernakulam.