Jamuna Prasad v. Magai Ram .

1. This rule was obtained upon the opposite party, a decree-holder upon a mortgage suit, to show cause why execution proceedings in the suit should not be stayed pending an appeal in this Court. The facts briefly are that the applicant had filed an application to set aside an ex parte decree upon a mortgage, that application was rejected by the Sub-ordinate Judge, and an appeal is now pending against that rejection.

2. The judgment-debtor applied to have the sale postponed until the appeal against the order rejecting the application for re-hearing had been taken up and disposed of, and that application was rejected by the Sub-ordinate Judge. The proceedings have so far been misconceived. The case reported as Bhagwat Rajkoer v. Sheo Golam Sahu(1) is sufficient authority for the proposition that there is no power vested in an appellate Court to stay proceedings in a case such as this. But the papers being before us, under S. 115 we deem it expedient to modify the orders made by the learned. Sub-ordinate Judge upon the application to postpone the sale. The learned Sub-ordinate Judge writes:

“Execution proceedings cannot be stayed unless there is a distinct order from the appellate Court to that effect.”

3. That is to a great extent, correct, but the learned Sub-ordinate Judge failed to exercise the discretion vested in him under O. 21, R. 69, which gives him power to postpone the sale to any specified date. Such an order should have been made-in this case. We propose to advise the learned Sub-ordinate Judge to make it now. We return the case to him, the order already made dated 28th February, 1916 being vacated, and we direct him to re-hear the application to postpone the sale, and recommend that the sale be postponed to 15th June on condition that the judgment-debtor waives fresh service of attachment and proclamation. In the meantime instructions will be issued to the Registrar to expedite this appeal and do everything possible to bring it on for hearing before the 1st day of June. The costs of this Rule will form part of the costs of the case, hearing fee two gold mohurs.

V.S/R.K

4. Case returned.