' ABDUL SHAKURUL SALAM, J.--This appeal by leave arises in the following circumstances:
1. Relevant facts for the disposal of this appeal are that Abdul Rehman Khan cited as respondent filed a suit for a declaration that the order of the Deputy Custodian Evacuee Property, Lahore dated 14-10-1970 or 30-4-1968 in favour of Khuda Bukhsh, predecessor-in-interest of the appellants, was forged. The appellants pleaded that the suit was not maintainable being collusive with the tenants of the property who had been ordered to be ejected and that the plaint may be rejected under Order VII Rule 11 C.P.C. In view of the bar contained in section 15(5) of West Pakistan Urban Rent Restriction Ordinance, 1959. The plaint was rejected by the learned Civil Judge, Lahore vide order, dated 31-7-1976. The order was upheld by the learned Addl. District Judge, Lahore vide order dated 31-7-1977. However on the revision petition filed in the name of Abdul Rehman Khan before the High Court, the case was remanded to the learned trial Court for fresh decision. This is vide order, dated 6-12-1983. On 31-8-1988, the appellants were granted leave to appeal and "proceedings stayed meanwhile".
2. Today at the hearing it is pointed out by the learned counsel for the heirs of Abdul Rehman Khan who had been representing them since the demise of Abdul Rehman Khan at the initial stage of the suit that since the appellants never informed the learned trial Court that this Court had stayed further proceedings, the trial continued and the suit has since been decreed. The decree is dated 28-7-1990. In reply, the contention of learned counsel for the appellants is that when this Court had stayed the proceedings, no decree could be passed. On the other hand, the learned counsel for the heirs of Abdul Rehman Khan submitted that in the absence of information or communication of the order of this Court, the trial Court could proceed and decree the suit.
' He referred to "Emperor v. Turab Khan" (AIR 1942 Oudh 42). Reference to page is incorrect. May be it is to page 84. But the case reported at this page has no application to the facts of the case. He then referred to "(Kasaribada) Venkatachel a-pat irao-Decree-holder v. (Maddipatl a)
Kameswa ram maJudgment-debtor" (AIR 1918 Mad. 391) wherein it was laid down that after stay of execution by appellate Court steps taken by lower Court before communication are valid. He then referred to Liakat Mian v. Padampat Singhania and others (AIR (38) 1951 Patna 130) wherein the majority of the learned Judges held that "the order passed by an appellate Court staying execution of the decree appealed from becomes operative the moment it is made and not after communication to the subordinate Court. It follows that from the moment the stay order is passed the executing Court is deprived of the power of executing the decree and any action taken by it in execution of the decree would be without jurisdiction". This clearly goes against the learned counsel quoting it. He then referred to "Sewa Singh v. The State" (AIR (39) 1952 All. 50) wherein a learned Judge in a criminal matter observed that "an order of stay cannot be effective unless it is communicated to the subordinate Court. It has no means of knowing that it must refrain from proceeding with a certain case, other than the receipt of the stay order itself. The judgments delivered by the Court in spite of the stay order, which, however, had not been communicated to it before the judgments were delivered, are not illegal". To the same effect is "Mahmood Hussain son of Muhammad Hussain v. Emperor" (AIR 1943 Lah. 191) wherein it was laid down that" an order by the High Court staying further proceedings in the lower Court on an application under section 526 can only be deemed to take effect when it is communicated to the lower Court concerned". Both the last two cases relate to criminal side.
3. The controversy stands settled as far as Courts in Pakistan are concerned. It was laid down in a Full Bench judgment reported as "Karam Ali & others decree holders v. Raja and others judgment- debtots" (PLD 1949 Lah. 100) that "both on principle and authority as well as on a plain construction of Order XLI, R.5, the answer to the question referred is that a stay order under Order XLI, R.5 operates from the time that such order is made and not from the time it is communicated to the executing Court". In the case of "Persumal and others v. Government of Pakistan and others" (PLD 1960 (W.P.) Kar. 690) a Full Bench referred with approval the case of "Syed Nazir Ahmad v. Syed Muhammad Saeed and another" (PLD 1955 Lah. 34) wherein it was laid down that "there can be no doubt that any proceedings taken by the learned Senior Civil Judge after the High Court order were entirely without jurisdiction". The learned Full Bench held that "the legal provision does not admit of any doubt that an order passed by an inferior Court during the subsistence of a stay order made by a superior Court is an absolute nullity". The Full Bench judgment of the Lahore High Court referred to above namely "Karam Ali v. Raja (PLD 1949 Lah. 100) was sought to be reconsidered by this Court in "Abdul Rashid Khan and 2 others v. Mst. Nasim Akhtar" (1974 SCMR 509) but this Court declined to do so and observed that in our opinion the view expressed by the Lahore High Court is in accordance with law. It is not necessary to re-examine the question already decided by the Lahore High Court". In this view of the matter, there is no escape from the conclusion that after the order of this Court staying further proceedings, the trial Court could not continue the trial nor pass the resultant decree.
4. In the case in hand, order of this Court was communicated to the High Court who further forwarded it to the trial Court, though the communication is not on the file of the trial Court. Such a contingency was envisaged in the Full Bench case of the Lahore High Court in "Karam Ali v. Raja" (PLD 1949 Lah. 100 at 114) where it was observed that "the order may, by collusion between the party interested and the ministerial officer of the appellate Court or the executing Court, be suppressed".
Nevertheless it was held that a stay order will "operate from the time that such order is made and not from the time it is communicated to the executing Court". Besides the reasons in the precedent cases it has also to be kept in view that just as law operates the moment it is enacted and ignorance of it is no defence, so an order made by a superior Court operates when it is made and non-knlowledge or ignorance will not permit the lower Court to render the order of the superior Court ineffective or nullity. It is the other way round. No doubt, non-knowledge will not entail liability for any action taken but action will not be clothed with legality when legal authority to proceed had been stopped or stayed.
5. For the foregoing reasons, the proceedings taken and resultant decree after the stay order by his Court being nullity, the learned trial Court is directed to proceed to determine the suit afresh as regards the declaration sought by the plaintiffs that the order of the Deputy Custodian dated 14- 101970 or 30-4-1968 relied upon by the defendants-appellants, was forged. It may be clarified that validity of the order is not to be adjudged as the Civil Courts do not have jurisdiction. What is to be determined is whether the order was passed by the Deputy Custodian or that had been forged. The parties may rely on the evidence already furnished in the suit or adduce more. The appeal is accordingly disposed of.