Harries, C.J:— Miscellaneous Appeal No. 10 of 1941, is an appeal from an order of the learned District Judge of Purnea made in an appeal preferred to him from a decision passed under Section 47 of the CPC. Civil Revn. No. 31 of 1941 has been filed in case this Court holds that no second appeal lies. For the respondents a preliminary point was taken, that no appeal lies; but before discussing that point, it will be necessary to set out the facts which give rise to this litigation. On 26th February 1938, the appellant obtained a mortgage decree against the respondents, and on 3rd December 1938, that decree was made final. On 15th March 1939, the present respondents made an application to the learned Munsif under, O. 9, R. 13 of the CPC, praying that the decree which was ex parte against them should be set aside. On 25th July 1939, this application was dismissed and on 25th August 1939 the present respondents preferred an appeal to the Court of the District Judge against the order of the learned Munsif dismissing their application. In the meantime proceedings to execute the mortgage decree were proceeding, and the sale of the mortgaged property had been fixed to take place on 2nd October 1939. On 28th September 1939, the present respondents applied to the learned District Judge to stay the sale of the property which was to take place in execution of the decree, and on 30th September 1939, the learned District Judge, in the absence of the appellant, made an interim stay order. In the ordinary course that stay order would have been communicated to the learned Munsif before the sale was due to take place. Owing to some error, the nature of which is not clear, the order did not reach the Court of the learned Munsif until 5th October 1939, and in the meantime the property as advertised had been sold on 2nd October 1939. It appears that no objection was taken by the present respondents, and on 21st November 1939, the sale was confirmed. Shortly afterwards in December 1939, the delivery of possession was given to the appellant.
2. On 17th January 1940, the respondents filed the present application in the Court of the Munsif praying that the sale which had taken place in execution of the decree should be set aside. It is to be observed here that the appeal against the order of the learned Munsif refusing to set aside the decree under O. 9, R. 13 of the CPC; was eventually dismissed by the District Court. The application of 17th January 1940, purports to be made under Sections 47 and 151 of the CPC, and the prayer is that the sale should be set aside. It is mentioned that an appeal was pending against the Munsif's decision in the proceedings under O. 9, R. 13 of the CPC, and that the learned District Judge had stayed the sale.
3. It is then said that the sale took place in error and that the applicants have suffered serious loss. There can be no doubt that this was intended as an application under Section 47 of the CPC, and appears to have been so regarded by the trial Court. The learned Munsif dismissed the application, but on appeal the learned District Judge reversed the decision, holding that as the sale had been stayed by an order of the District Judge the sale which actually took place on 2nd October 1939, was a sale wholly without jurisdiction and was null and void. Accordingly he passed an order setting aside the sale as prayed for by the present respondents.
4. As I have stated, the respondents have taken a preliminary objection that no appeal lies in this case. It is urged on their behalf that their application was an application under O. 21, R. 90 of the CPC, and if that were so, no appeal would be to this Court from the order of the learned District Judge. It is, however, clear from the terms of the application that what is complained of is not irregularity or illegality in the publication or conduct of the sale but rather that the sale was conducted wholly without jurisdiction; in short, that the sale took place when the Court of the Munsif was prohibited from selling. As I have stated, the application in terms purports to be made under Section 47 of the CPC, but it is true that applicants should not be tied down to the heading which they give in an application. Here, however, the terms of the application make it clear that it was not an application under O. 21, R. 90 of the CPC, and was an application which could only have beer dealt with under the provisions of Section 47 of the CPC. The learned District Judge treated the appeal to him as an appeal against an order passed under Section 47 of the CPC, and in my view it was an order passed under that section, and that being so, a second appeal lies to this Court.
5. Dealing with the merits, it appears to me that the learned District Judge was wrong in holding that the sale of 2nd October 1939, was a sale without jurisdiction. It is true that on 30th September 1939, the learned District Judge had issued an order staying execution of the decree; but in my view that order was wholly without jurisdiction and was a nullity. It has been held that an appellate Court hearing an appeal from an order made by a trial Court under O. 9, R. 13 of the CPC, cannot order the stay of the execution of the decree itself. In 31 Cal. 1081,1 a Bench held that Section 545 of the CPC, had no application when no appeal had been preferred against the decree in the original suit. It was laid down that it was not competent to an appellate Court to stay proceedings in execution of a decree of a subordinate Court, merely by reason of an appeal having been preferred against an order of refusal by the Court below to set aside the decree under Section 108 of the CPC. This case was considered by a Bench of the Patna High Court in 35 I.C 443.2 In that case the applicant had filed an application to set aside an ex parte decree upon a mortgage. The application was rejected by the Sub-ordinate Judge and an appeal was pending against that order. The judgment-debtor applied to the Sub-ordinate Judge to have the sale postponed until the hearing of the appeal, but the application was rejected. The learned Sub-ordinate Judge in his judgment stated: “Execution proceedings cannot be stayed unless there is a distinct order from the appellate Court to that effect.” In short, the Sub-ordinate Judge had refused to postpone the sale and was of opinion that, in the circumstances, the appellate Court only could stay the sale. This Court, however, held, following the case in 31 Cal. 1081 to which I have referred, that the appellate Court had no jurisdiction whatsoever to stay the sale and that the only Court that could postpone the sale was the Court of the learned Sub-ordinate Judge. This Bench decision which is binding on us clearly lays down that the appellate Court, hearing an appeal or about to hear an appeal preferred against an order refusing to set aside an ex parte decree, has no jurisdiction to stay the execution of that decree. Mr. Nirsu Narain Sinha has argued that on the plain words of O. 41, R. 5 of the CPC, he has such a right. That rule reads as follows:
(1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.
6. Mr. Sinha has argued that this rule clearly contemplates stay of proceedings under an order. He has urged that what was done in this case was to stay proceedings consequent to an order. That was so, but it was not stay of proceedings under the order appealed from. The order appealed from dismissed the application to set aside the decree with costs. Doubtless, the appellate Court could stay the order for execution of costs; but that is very different from saying that it could stay the execution of the decree which the lower Court had refused to set aside. In my view, having regard to the authorities, it is now too late to contend that the order of the learned District Judge staying the sale was an order made with jurisdiction. It was an order made wholly without jurisdiction and was null and void.
7. Mr. Sinha, however, has contended that even assuming that the order was without jurisdiction, yet it would have been obeyed by the learned Munsif had he received it in time. Doubtless the learned Munsif would have obeyed the order out of loyalty to the superior Court. It is not for the Munsif to question the validity of these orders. Fortunately, however, for the appellant in this case the order was not transmitted to the learned Munsif and the sale took place. We are now asked to say that when the sale took place there was in existence an order prohibiting it, and that being so, it was a sale without jurisdiction. The order purporting to prohibit the sale was, as I have said, an order without jurisdiction. In short, it was no order at all, and that being so when the sale took place there was no valid judicial order prohibiting it. It, therefore, took place in accordance with law and was a sale with jurisdiction. Had the order of the learned District Judge been conveyed to the learned Munsif, the sale would undoubtedly have been stayed and the present respondent would have obtained an advantage to which in law they were not entitled. The effect of Mr. Sinha's argument is that the failure of the post office to deliver this order prevented an injustice; but we should now perpetrate an injustice by holding that had the Munsif received the order, he would have obeyed it although it was an order which should never have been made and which was of no legal effect whatsoever. In my view, looking at the matter now, we must consider whether there was anything in existence at the time of the sale which rendered the sale invalid or without jurisdiction. In my view, all that existed was an order which was of no validity and of no effect and which fortunately did not prevent the sale owing to the failure to communicate the same to the learned Munsif. The sale took place, and there was nothing in effective existence to prevent such taking place. It follows, therefore, that the sale was a valid sale and that the application to set it aside under Sections 47 and 151 of the CPC, was rightly dismissed by the learned Munsif. In my view the learned District Judge was in error in reversing the decision, and that being so, I would allow this appeal, set aside the order of the learned District Judge and restore the order of the learned Munsif. The appellants are entitled to their costs in this Court and in the Courts below. It is not necessary to pass any detailed order on the civil revision as it was simply filed as an alternative to the appeal. It must be dismissed.
Dhavle, J.:— I agree.
G.N/R.K
8. Appeal allowed.