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Issues: (i) Whether the stay order passed in the earlier appeal revived on restoration of the appeal so as to continue the stay of execution and sale; (ii) Whether the order dated 11-8-1955, though mistakenly recorded as a stay of delivery of possession, was in substance a stay of sale and rendered the sale held on 16-8-1955 void.
Issue (i): Whether the stay order passed in the earlier appeal revived on restoration of the appeal so as to continue the stay of execution and sale.
Analysis: On restoration of an appeal dismissed for default, all ancillary orders passed in the appeal revive unless the record or the restoring order shows a contrary intention. A stay order is an ancillary order intended to support the appeal and to preserve the subject-matter pending its decision. The dismissal of the appeal in the meantime did not permanently extinguish the earlier stay when the appeal was later restored.
Conclusion: The stay order revived on restoration of the appeal and continued to operate.
Issue (ii): Whether the order dated 11-8-1955, though mistakenly recorded as a stay of delivery of possession, was in substance a stay of sale and rendered the sale held on 16-8-1955 void.
Analysis: The surrounding applications and the record showed that the relief sought and intended was a stay of sale, not a stay of delivery of possession. A judicial order must be read according to what the Court intended to pass, and a clerical or accidental mistake in recording it cannot control the true effect of the order. In the face of the intended stay of sale, the execution sale could not be sustained.
Conclusion: The order dated 11-8-1955 was to be read as a stay of sale, and the sale held on 16-8-1955 was void.
Final Conclusion: The execution sale could not stand because the operative stay had revived and the later stay order had to be construed as protecting the property from sale.
Ratio Decidendi: When an appeal dismissed for default is restored, ancillary interlocutory orders revive with it, and a court order may be construed in its intended legal effect rather than by an obvious recording mistake.
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