1. This is an application by the judgment debtor for stay of execution pending the disposal of the appeal in this Court. The opposite party decree-holder resists this application. The disputed property is a piece of land about 10 kathas in area. The judgment debtor says that on the land in question stand his coolie shed and tram lines for the purpose of working his colliery. The opposite party denies the existence of any coolie shed or the tram lines. It is true that in face of the extraordinary statements made on behalf of the parties it is not possible to be certain as to whether the coolie shed and the tram lines stand on the land in dispute. If, however, they do exist, the judgment-debtor will be put to substantial injury and loss if the decree-holder removes them after getting possession of the property in dispute. According to the case of the opposite party the land is practically parti and therefore no loss would accrue to the opposite party if the delivery of possession is stayed pending the disposal of the appeal. Any undertaking on behalf of the decree-holder not to change "the outlook and sight of the land" in dispute will be of no avail if, as he says, there is nothing on the land in question.

2. Considering the circumstances of the case we are satisfied that the balance of convenience lies in staying the execution and delivery of possession of the property in dispute pending the disposal of the appeal on the judgment debtor furnishing sufficient security for the restitution of the same to the decree-holder in the event of the appeal being dismissed. We, therefore, set aside the order of the Registrar and direct that the execution be stayed as aforesaid. The Court below will determine the amount of security necessary for the purpose.

3. The learned Vakil on behalf of the decree-holder, however, contends that there is no occasion now for the stay of the delivery of possession inas much as possession of the property has already been delivered to the decree-holder. To this the learned Vakil on behalf of the judgment debtor replies that the circumstances in which the delivery of possession was effected will justify this Court to ignore the said delivery of possession and to restore status qua ante and direct the possession to be delivered back to the judgment-debtor. These circumstances are as follows:-

On the 26th February 1923 the learned Registrar, refused the application of the judgment debtor for stay of the execution. The judgment debtor shows by an affidavit filed in this Court that the order in question was not passed in the presence of his Vakil, and that neither he nor his Vakil was aware of the said order until the 1st of March 1923 when the order was shown to his Vakil. This allegation is not refuted and is in fact supported by the note made by Mr. Abani Bhusan Mukharji, Vakil of the petitioner, in the order sheet on the 1st March 1923. His note was "The order was never communicated to me. I came to see this order." This note has been penned through and is followed by the word "Seen." Mr. Mukharji says that he cancelled his note upon the representation of the Deputy Registrar that the order sheet of the High Court should not contain such a note. We do not see any reason why such a note should not have been allowed to be made if what was stated by Mr. Mukharji was a fact. This, however, does not matter for the order was actually seen for the first time by the Vakil on the 1st March 1923. Therefore till then the learned Vakil was ignorant of the order. Mr. Mukharji states that he immediately wired to his client asking him to come and take necessary steps in order to move this Court against the order of the Registrar, on the 5th March. The High Court was notified to be closed on the 3rd, 4th and 5th Maroh on account of holy festival, but at the eleventh hour the dates were changed into 2nd 3rd and 4th March. Thus 2nd of March became a holiday and consequently nothing could be done by the petitioner to move this Court against the order of the Registrar until the Court re-opened on the 5th of March. An application of' the petitioner was filed to the Court against the order of the Registrar on the 5th. March and was disposed of on the 6th March. In that order the Court admitted the application and directed notice to be issued to the opposite party, granting ad interim stay of execution of the decree pending the disposal of the application. In the meantime the order of the Registrar rejecting the judgment debtor's application for stay passed on the 26th February 1923 was dated and received by the lower. Court on the 28th of February, although the order was not shown to the petitioner's Vakil, as stated above, until the 1st of March. On receipt of the order of the Registrar the lower Court directed the execution to proceed and the issue of processes for delivery of possession filing the 19th March 1924. This Order was, however, not passed in the presence of the judgment-debtor or his pleader. The order sheet does not bear the signature of the judgment-debtor or his pleader. The petitioner has sworn in his affidavit that he or his pleader was not aware of the aforesaid order. The order sheet does not contain the signature of the judgment-debtor or his pleader. The result was that the possession was delivered to the decree holder on the strength of the aforesaid order on the 5th March 1923, before the judgment-debtor could obtain an order of this Court on the 8th March for an ad interim stay of the execution. The judgment-debtor applied to the Court below for stay of execution on the basis of the order passed by the High Court.

4. In these circumstances we do not think that the delivery of possession cah in any way frustrate the petition of the judgment-debtor for stay of execution. It is obvious that the judgment debtor was ignorant of the order passed by the Court below on the 28th February and that order can not in any way prejudice him. The order of the 28th of February was an important order. It was an order after a lapse of time during which the application of the judgment-debtor for Stay of execution was pending in this Court. It has been pointed out more than once that an important order such as the present one should not be passed ex parte and that the signature of pleader should invariably be taken in column 4 provided for in the order sheet for the purpose. In the present case there were stronger; reasons why the order should not have been passed behind the back of the petitioner and without his knowledge or that of his pleader. The special column provided for in the order sheet is particularly meant to (sic) against any injustice being done by an ex parte order behind the back of a party. In the case of S.M Sudeve Devi v. Sovaram Agarwallah, (10 Cal WN, 306,) where there was no provision relating to notice to be given to a party concerned. Woodroffe J. held that notice should have been given. He further said that it was an elementary principle that no order should be made in favour of one party against and to the prejudice of another unless that other had an opportunity of showing that it should not be made. I remember to have followed and adopted the dictum of Woodroffe J. in some cases and I still adhere to the view and consider the dictum a salutary one, vide Gour Chandra May v. Janardhan Thakur 1923 Pat. 180 : 4 P.L.T. 204: 68 I.C. 337 and Ram Sukhal Pathak v. Kesho Prasad Singh 2 P.L.J. 218: 4 Pat. L.W. 75: 43 I.C. 925 (F.B).

5. Therefore the order of the 28th February and the delivery of possession given to the opposite party must be considered to be null and void, and cannot in any case give any right to the decree-holder in the property in dispute to the prejudice of the judgment-debtor as in the case of S.M. Sudevi Devi v. Sovaram Agarwallah [1905] 10 C.W.N. 306. The possession delivered to the decree holder in pursuance of the order must be set aside and the property delivered back to the judgment-debtor. I would further point out to the Munsif the usual practice of notifying to the parties the receipt of the record when it goes back from the High Court in order that the parties may be apprised of it and take necessary steps. The aforesaid elementary rules of procedural should always be kept in view and the non-observance of the same works, as it has done in the present case great hardship to the parties. I would therefore invite the attention of the learned Munsif specially to the rules and the authorities referred to above.

6. The result is that execution and the delivery of possession are stayed pending the disposal of the appeal upon the judgment-debtor furnishing security to the satisfaction of the Court below for restitution of the same in the event of the appeal being dismissed. In the circumstances of the case we direct that the Opposite party would pay two gold mohurs to the applicant as the hearing fee.